Updated CDC and OSHA Guidance on Mask Usage and Effects on Retail Employers

Dear Retail Clients and Friends,

The Centers for Disease Control and Prevention (CDC) updated its guidance for fully vaccinated individuals on May 13 to state that “fully vaccinated people no longer need to wear a mask or physically distance” in most settings, subject to applicable law or workplace guidance. The Occupational Safety and Health Administration (OSHA) updated its website on May 17 to refer employers to the CDC guidance for appropriate measures to protect vaccinated workers until OSHA provides further updates. This edition of Morgan Lewis Retail Did You Know? discusses how these developments will affect retail employers.

CDC guidance issued on May 13, 2021 says fully vaccinated individuals can safely forgo masks and social distancing requirements in most indoor locations. The CDC was careful to note, however, that vaccinated individuals should continue to wear masks if required by federal, state, or local rules, including guidelines from businesses related to mask usage by customers.

The CDC policy change was due to new information showing reduced risk of COVID-19 infection in vaccinated individuals and reduced risk of transmission from fully vaccinated persons to unvaccinated persons. The CDC recommends that unvaccinated persons continue to wear masks and social distance.

OSHA updated its COVID-19 interim enforcement website on May 17, 2021 by stating OSHA was reviewing the CDC guidance and planned to update its guidance accordingly. Until that time, OSHA told employers to refer to CDC guidance for measures “appropriate to protect fully vaccinated workers.”

Analysis

CDC guidance are recommendations and are not legally binding. Businesses should continue to follow federal, state, or local laws that mandate mask usage or recommend them. Under the CDC guidance, however, businesses, including retail establishments can:

• allow fully vaccinated persons to stop wearing masks indoors, practicing social distancing, or undergoing screening procedures like temperature checks. Unvaccinated persons should continue to wear masks, practice social distancing, and participate in workplace screening, such as symptom screening or testing.
• ask employees about vaccination status and request proof of vaccination.
• We note, however, that some states and localities prohibit or are considering prohibiting businesses from making employment decisions on the basis of vaccination status.
• In addition, some states or localities prohibit or are considering prohibiting businesses from asking patrons or customers about vaccination status or excluding, limiting, segregating, or refusing to serve them based on vaccination status.
• use vaccination status to guide access policies to buildings, workspaces, and events (unless the applicable state or locality prohibits businesses from excluding, limiting, segregating, or refusing service based on vaccination status).
• voluntarily choose to require masks and social distancing for all workers and/or customers if they prefer (which businesses may do based on ease of administration or concerns from employees or the public regarding transmission of COVID-19).

The fact that vaccinated individuals do not need to wear masks and social distance whereas unvaccinated persons do places businesses in a precarious position, particularly retail establishments. These establishments will need to balance a variety of factors in developing their responses, including customer and employee preferences, safety concerns, and various federal, state, and local rules in place related to mask usage and proof of vaccination.

Enforcement of a relaxation of mask-wearing and social distancing based on vaccination status is an especially difficult problem as it may not be feasible for many establishments to confirm whether customers who are not wearing masks are vaccinated. In fact, as noted above, some states prohibit establishments from asking customers and patrons for proof.

If an establishment decides to follow the CDC guidance and allow vaccinated employees and customers to dispense with masks, social distancing, or screening when permissible under state and local law, we recommend that it:

• prominently display policies on mask usage for customers and employees so both are on notice regarding the establishment’s rules;
• have clear processes for employees to report safety concerns related to customers and a plan for responding to such concerns;
• consider enhanced mask requirements for unvaccinated employees, such as double masking, use of face shields, or N95 masks;
• spot check unvaccinated employee compliance with mask requirements; and
• train managers on how to communicate with employees and customers about vaccine status issues.

Some jurisdictions have updated their requirements in light of the CDC’s new guidance, and we anticipate others will follow in the coming days or weeks. We also anticipate more guidance from OSHA and other federal agencies, including the US Equal Employment Opportunity Commission, although the timing is uncertain. Employers should continue to monitor these developments closely.

Contacts

If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:

Retail Co-Leaders:
Anne Marie Estevez, Miami
Nick Bolter, London
Christina Edling Melendi, New York
Gregory T. Parks, Philadelphia

Washington, DC
Sharon Masling